San Antonio Guardianships Lawyer
It can be painful to watch an older person decline in their mental and physical capabilities and that pain can be heightened further when it’s someone close to us, like a parent. Amidst any possible emotional angst though, hard legal decisions have to be made. Who is going to watch out for the declining person? What will that responsibility entail? That's where guardianships come in.
A San Antonio guardianships lawyer can help you understand the responsibilities that come with this role and how to obtain it on behalf of someone you love. Call the Law Office of Paul D. Hardy at (210) 405-1985 or contact us online.
A guardianship is the means by which a person is permitted to make decisions on behalf of another. It’s an extremely significant step. Guardianship means, in strictly legal terms, that some or all of a person’s civil rights are being assigned to someone else.
The gravity of declaring assigning a declining person (referred to as “the ward” in legal terminology) to a guardian is such that the state of Texas sees it as a last resort. Furthermore, Texas judges are instructed to allow self-reliance and independence to the maximum degree that is realistically possible given the specific circumstances of a case.
To that end, limited guardianships may be established, where a guardian will have legal rights to do some things, but not others. Having said that, there are certainly cases where an elderly person’s decline is advanced enough that there may be no other choice but to grant complete control over their affairs to a guardian.
Two Kinds of Guardianships
The affairs of an elderly person are broadly categorized two different ways for the purposes of guardianship. There is a guardian of the person and there is a guardian of the estate. To understand how these distinctions operate in the real world and how they offer courts flexibility, let’s consider a hypothetical example.
A person is physically disabled. They are confined to their bed. They are still receiving income in a range of forms, from a work pension to stock dividends to government disability programs. In many ways, they function very well, including the ability to have conversations with loved ones and remember faces, names, and events.
There are still real problems, starting with the ability to get to the bank. Our modern society has made tasks like check-cashing and bill payment easier for disabled people thanks to the ability to do so electronically. But it’s very difficult for any of us to function without leaving the house. Family and friends in the area can help to a certain degree, on matters like buying groceries. But somewhere along the line, important affairs that require the disabled person to be physically present are going to arise.
A Texas court can address this by granting powers of guardian of the estate, allowing a trusted friend or family member to execute in-person financial affairs on behalf of the disabled person.
The extent of the guardian’s power will be determined by the mental condition of the disabled person. In our example, the potential ward is disabled, but not incapacitated. That is, they have their mental faculties about them to make important decisions.
However, what if Alzheimer’s is creeping in. It’s not so bad as to be completely debilitating, but even the sick person knows they’re forgetting more and more names, faces, and events with each passing day. At the same time, the person would like to stay in their home a little longer–as long as they can remember where they are.
A part of guardianship of the estate is the right to sell property on behalf of the ward. A part of guardianship of the person involves making determinations on housing. These powers must be granted if a guardian is to eventually be the one to sell the home and move the ward into an assisted living facility.
What Are the Responsibilities of a Guardian in Texas?
The responsibilities of the guardian, as you might imagine, are high. The state of Texas holds guardians to the standard of a fiduciary relationship with the ward. Fiduciary duty is the same obligation those of us in the legal profession have to our clients, or that financial planners have to those that come to them. It is the obligation to exercise the highest degree of loyalty to the best interests of the person you are representing.
Furthermore, a guardian may not, under the Texas code, dispute the ward’s right to property. Let’s say there’s tension between older siblings. One of them inherited the family home after the death of the parents and that inheritance was the subject of a legal dispute. The bad blood has subsided, but it’s still lingering. Now, the sibling who inherited the house has become incapacitated in their late sixties. The other sibling, only a few years younger, might become the guardian. However, they cannot use this moment to contest ownership of the family house. The ward’s rights are protected.
The examples cited here are ones where guardianship might have been limited or there was some sort of dispute. In reality, it’s quite common for adult children to simply want to do right by their aging parents or relatives and to be seeking guardianship for the best of reasons. There is a clear process to follow in a Texas court.
The court will be looking for clear and convincing evidence that the potential ward is no longer able to make decisions for themselves.
Courts evaluate both the medical side–the ability to physically move and perform activities necessary to living–as well as the cognitive side. The latter refers to the ability to receive and process information for the purpose of decision-making. An obvious example would be the ability to receive the information that an electric bill is due, and to process that in a way to know that paying the bill is the next step.
Furthermore, the courts will appoint an attorney ad litem to represent the potential ward in court. The purpose here is to ensure that the ward’s best interests are fully explored and advocated for by an independent lawyer before the court makes a final decision.
Expert witness testimony that may be needed to provide clear and convincing evidence. Certainly, the potential ward’s doctor would be an example. Family members and friends who can speak to the mental decline can also play a valuable role. Your lawyer can work to line up these potential witnesses, along with putting everything in place to help you assume your own fiduciary responsibilities to the person you seek guardianship over .
The Law Office of Paul D. Hardy is here to help. We take seriously the rights of all potential wards to be treated with dignity and respect and know that can mean putting them under the care of a guardian who loves them and has their best interests at heart.
Isn’t Estate Planning for People Who Are Rich?
No! The word “estate” can conjure up images of a sprawling yard and luxurious mansion, as though we’re on the set of Downton Abbey. Reality is different. Your estate is simply the money and property you own at the time of your death. Estate planning consists of the various legal mechanisms that are used to ensure your wishes are known and respected, that you get the best possible tax treatment based on your goals and that prudent steps are taken to protect your assets as much as possible in your final years of life.
Can You Avoid Probate With a Will?
A will alone will not be enough for your heirs to avoid going through probate court, with its attendant fees. The way to keep your assets out of probate court is through the establishment of a living trust.
What Happens Without a Will?
When you die without a will, your estate becomes subject to the intestacy laws in the state of Texas. The state seeks to place your assets in the hands of living spouses, children, siblings and parents and has clear guidelines for different family scenarios. The problem is that the law for an entire state is simply not able to anticipate the particular wishes of a deceased person. That’s why it’s strongly advised to put your last will and testament into writing. That way, everyone knows what your wishes are, and courts will be able to enforce it.
What Are the Benefits of a Trust?
Staying out of probate court is just one of the advantages that a living trust can offer. A trust can be structured so as to minimize your tax exposure ,while still allowing you to gift money into it while you’re alive. If you believe the benefits to your beneficiaries are best deferred to a later date or spread out over time, you can appoint a trustee who can administer that after your passing. A trust offers you flexibility and allows your beneficiaries to avoid dealing with probate court .